Chattisgarh High Court
Narendra Sahu vs State Of Chhattisgarh on 14 December, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1119 of 2022
Narendra Sahu S/o Parshottam Sahu Aged About 21 Years R/o Village
Kanaujiyakanpa, Police Station- City Kotwali, Mungeli, District Mungeli,
Chhattisgarh
---- Appellant
Versus
State Of Chhattisgarh Through The Station House Officer, Police
Station- Adim Jati Kalyan Thana, Mungeli, District- Mungeli,
Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System)
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For Appellant : Mr. Awadh Tripathi, Advocate.
For Respondent/State : Mr. H.S. Ahluwalia, Dy. A.G.
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Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Order on Board
Per Ravindra Kumar Agrawal, Judge
14.12.2023
This appeal is arise out of the conviction and sentence dated
06.07.2022 passed by the Special Judge (F.T.S.C.), POCSO Act,
Mungeli (C.G.) in Special Criminal Case No.10/2021, whereby the
appellant has been convicted for the offence punishable under Sections
363, 366, 376(2)(n) of IPC and Section 6 of POCSO Act and sentenced
in the following manner with the direction to run all the jail sentences
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concurrently :-
CONVICTION SENTENCE
Under Section 363 of IPC R.I. for 5 years and fine of Rs.2,000/- in
default of payment of fine 2 months additional
simple imprisonment.
Under Section 366 of IPC R.I. for 5 years and fine of Rs.2,000/- in
default of payment of fine 2 months additional
simple imprisonment.
Under Section 6 of R.I. for 20 years and fine of Rs.2,000/- in
Protection of Children from default of payment of fine 2 months additional
Sexual Offences Act, 2012. simple imprisonment.
2. Brief facts of the case are that on 23.09.2020, the father of the
prosecutrix has lodged a report to the police with effect that he is
residing at Village – Kanojiakanpa alongwith his family. His
daughter aged about 14 years, 8 months and 17 days was residing
at her maternal grand mother’s house at Village – Majhuwapara
and studying there. From 15.08.2020, when the sad demise of one
of his relative had taken place, since then his daughter was started
residing at Village – Guna and occasionally came to his house.
Yesterday on 22.08.2020 at about 12:00 in the night his mother-in-
law had informed him that at about 7:30 in night they went to sleep
and in the night at about 10:00PM when she woke up, she saw
that the prosecutrix was not on her bed and after search of her she
could not be found. Her whereabouts was not known despite
searching from their relatives house and thereafter the report has
3
been lodged. The police has registered the offence under Section
363 of IPC against unknown persons vide Ex.P/5. The spot map
Ex.P/6 has been prepared by the police with respect to the age of
the prosecutrix. The police has seized School Admission and
Discharge Register from New India Higher Secondary School,
Jarhabhata, Bilaspur and after obtaining the true copy of the said
register Ex.P10(C), the same was returned back to the School and
as per the School Admission and Discharge Register, the date of
birth of the prosecutrix is 05.01.2006. The police has seized Social
Status Certificate which is Ex.P/8, according to which the
prosecutrix belongs to Schduled Caste community. The School
Register was seized vide Ex.P/11. During the investigation the
prosecutrix was recovered on 04.01.2021 from the possession of
the appellant and the Recovery Panchnama Ex.P/2 was prepared.
The prosecutrix was sent for her medical examination to District
Hospital, Mungeli, where Dr. Neha Smriti Lal (PW-8) has examined
her and gave her report Ex.P/16, after medical examination, the
doctor has mentioned that no injuries on the body of the
prosecutrix were found and found her to be habitual sexual
intercourse, two slides has been prepared from the viginal swab of
the prosecutrix. She advised for her Radiological examination to
determine her age. The appellant was arrested on 05.01.2021 and
he was also sent for medical examination to District Hospital,
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Mungeli, where Dr. S.P. Baghel (PW-6) have examined him and
gave his report Ex.P/14, whereby the appellant was found capable
to perform the sexual intercourse. Statement under Section 164 of
CrPC of the prosecutrix was recorded on 06.01.2021. The
statement under Section 161 of the witnesses have also been
recorded by the police and after completion of investigation, the
police has filed charge-sheet under Sections 363, 366, 376/34 of
IPC and Sections 4 & 6 of the POCSO Act and Section 3(2)(v) of
Scheduled Castes and Scheduled Tribes Prevention of Atrocities
Act, 1989 against two accused persons, i.e. one is the appellant
and another accused Pershottam, S/o. Samodi Sahu.
3. On 15.03.2021, the trial Court has framed charges under Sections
363, 366, 376(2)(n) read with Section 34 of IPC Section 6 of the
POCSO Act and Section 3(2)(v) of Scheduled Castes and
Scheduled Tribes Prevention of Atrocities Act, 1989 against the
appellant and Sections 363, 366, 376 read with Section 109 of IPC
and Section 6/17 of POCSO Act and Section 3(2)(v) of Scheduled
Castes and Scheduled Tribes Prevention of Atrocities Act, 1989
against co-accused Pershottam Sahu. The appellant abjured his
guilt and plead innocence and claimed trial.
4. In order to establish the charge against the appellant, the
prosecution has examined 12 witnesses. The statement of the
appellant was also recorded under Section 313 of CrPC, in which
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he denied material appearing against him and stated that he is
innocent and has been falsely implicated in the case. After
appreciation of the evidence adduced by the prosecution, learned
trial Court has convicted the appellant and sentenced him as
mentioned in para 1 of this judgment, however, the trial Court has
acquitted the co-accused Pershottam Sahu from all the charges.
Hence, this appeal by the appellant.
5. Learned counsel for the appellant has argued that prosecution has
failed to prove the case against the appellant beyond reasonable
doubt. There is no illegally admissible evidence with regard to the
age of the prosecutrix that on the date of the incident, she was
minor and less than 18 years of age. No any Kotwari Register or
ossification report was produced by the prosecution to determine
the actual age of the prosecutrix that on the date of incident, she
was below 18 years of age. In absence of examination of the
author of the School Admission and Discharge Register, the same
cannot be taken into consideration for determination of the age of
the prosecutrix. School Admission and Discharge Register is a
week type of evidence. No any Kotwari Panji or ossification report
was produced by the prosecution to determine the age of the
prosecutrix. It is further argued by the learned counsel for the
appellant that the statement of the prosecutrix, her parents and
Headmaster of the School are not reliable and their statements are
6
inconclusive.
6. Learned counsel for the appellant has further submits that the
prosecutrix herself went alongwith the appellant and no alarm has
been raised by her while travelling with the appellant from one
place to another and also while staying with the appellant at
Raipur. She has not informed the house owner that she was
forciably taken by the appellant. She has not made any complaint
to any person who met with her on the way or at the place where
she was residing with the appellant, therefore the alleged offence
of IPC and POCSO Act and Atrocities Act are not made out against
the appellant and he is entitled for acquittal.
7. On the other hand, learned counsel for the State opposes the
arguments made by the learned counsel for the appellant and
contended that the prosecutrix was minor and below 18 years of
age at the time of incident which is proved by the School
Admission and Discharge Register, which contains the date of birth
of the prosecutrix as 05.01.2006. School Register is admissible
piece of evidence to determine the age of the prosecutrix.
Therefore, there is not illegality or infirmity in the findings of the
learned trial Court. The prosecutrix was abducted by the appellant
and kept away from the local guardianship for a considerable
period of time and forcibly conducted sexual intercourse with her
and therefore the impugned judgment of conviction and sentence
7
needs no interference.
8. We have heard learned counsel for the parties and peruse the
record.
9. In order to consider the age of the prosecutrix, we have examined
the evidence available on record produced by the prosecution. The
prosecution relied upon the School Admission and Discharge
Register of the prosecutrix which is sought to be proved by
Manisha Rai (PW-5), who was the Principal of the New India
Higher Secondary School, Jarhabhata, Bilapsur. She stated in her
deposition that police has seized the School Admission and
Discharge Register of the School and after retaining the true copy
of the register Ex.P10(C), the original register was returned back to
her. In the said school register the date of birth of the prosecutrix
is mentioned as 05.01.2006. The said register was seized through
the seizure memo Ex.P/11, in her cross examination she admits
that at the time of admission of the prosecutrix she was not posted
there at school. She could not know as on what basis the date of
birth of the prosecutrix is mentioned in the school register. She
admits that the documents on the basis of which the date of the
birth of the prosecutrix was mentioned in the school register she
has not brought alongwith her. She has further admitted that at the
time of admission in the school what documents were submitted by
the parents of the prosecutrix she could not tell. She further admits
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that in absence of any document which relates to the date of birth
of the child, whatever date informed by their parents, the same
was entered in the school register. She has also admitted that
there is no endorsement about the document upon which the date
of birth of the prosecutrix was entered in the school register. PW-1,
the mother of the prosecutrix have stated in her deposition that her
daughter is aged about 15 years. In her cross-examination she has
stated that she could not know the date of birth of her daughter.
Her mother (mother of PW-1) has got admitted the prosecutrix in
school. She denied that she is not having the birth certificate of the
prosecutrix with her. She admits that she has not brought the birth
certificate of her daughter today. She could not know as to whether
the birth of the prosecutrix were ever recorded in the Kotwari Panji
or not and it is her husband who might have been of the
knowledge of the same. She could not know as to what document
have got prepared by her mother with respect to the date of birth of
the prosecutrix. PW-3 the prosecutrix have stated that her date of
birth is 05.01.2006. In her cross -examination she has stated that
she could not have any Kotwari panji or birth certificate with
respect to her date of birth and it is her father who can tell about
the same. PW-4, the father of the prosecutrix have stated that he
could not know the date of birth of the prosecutrix but at the time of
the incident her daughter was aged about 14 years. He has denied
9
that he has not having the birth certificate of the prosecutrix. He
has stated that the police has not seized the birth certificate of the
prosecutrix from him and he has not brought the birth certificate of
the prosecutrix today. He admits that he has got her daughter
admitted to school. No any ossification report has been produced
by the prosecution although the Dr. Neha S Lal has referred for her
ossification report for determination of her age. The investigation
officer PW-9 has admitted in her deposition that at the time of
recording the FIR the father of the prosecutrix was brought the
document relating the date of birth of the prosecutrix but the same
has not been seized by him and he has not investigated with
respect to date of birth of the prosecutrix and no any Kotwari panji
and birth certificate have been produced before him.
10. After considering the entire facts and circumstances of the case, it
emerges that the prosecution has failed to produce any cogent and
reliable evidence with respect to the age of the prosecutrix.
11. In case of Ravinder Singh Gorkhi Vs. State of UP, 2006 (5) SCC
584, relying upon its earlier judgment in case of Birad Mal Singhvi
Vs. Anand Purohit, 1988 supp. SCC 604, the Hon’ble Supreme
Court has held as under :
“26. To render a document admissible under Section
35, three conditions must be satisfied, firstly, entry
that is relied on must be one in a public or other
official book, register or record; secondly, it must be
an entry stating a fact in issue or relevant fact; and
10thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in
performance of a duty specially enjoined by law. An
entry relating to date of birth made in the school
register is relevant and admissible under Section 35
of the Act but the entry regarding the age of a
person in a school register is of not much evidentiary
value to prove the age of the person in the absence
of the material on which the age was recorded.”
12. In case of Alamelu and Another Vs. State, represented by
Inspector of Police, 2011(2)SCC-385, the Hon’ble Supreme Court
has held that the transfer certificate which is issued by government
school and is duly signed by the Headmaster would be admissible
in evidence under Section 35 of the Evidence Act 1872. However,
the admissibility of such a document would be of not much
evidentiary value to prove the age of the prosecutrix in the
absence of any material on the basis of which the age was
recorded. The Hon’ble Supreme court held that the date of birth
mentioned in the transfer certificate would have no evidentiary
value unless the person who made the entry or who gave the date
of birth is examined.
13. In paragraphs 40,42,43,44 and 48 of its judgment in Alamelu
(Supra), the Supreme Court has observed as under :
“40.Undoubtedly, the transfer certificate, Ex.P16 indicates
that the girl’s date of birth was 15th June, 1977. Therefore,
even according to the aforesaid certificate, she would be
above 16 years of age (16 years 1 month and 16 days) on
the date of the alleged incident, i.e., 31st July, 1993. The
transfer certificate has been issued by a Government
School and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under Section
1135 of the Indian Evidence Act. However, the admissibility of
such a document would be of not much evidentiary value to
prove the age of the girl in the absence of the material on
the basis of which the age was recorded. The date of birth
mentioned in the transfer certificate would have no
evidentiary value unless the person, who made the entry or
who gave the date of birth is examined.
42. Considering the manner in which the facts recorded in a
document may be proved, this Court in the case of Birad
Mal Singhvi Vs. Anand Purohit1, observed as follows:-
“The date of birth mentioned in the scholars’
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined….Merely because the
documents Exs. 8, 9, 10, 11, and 12 were
proved, it does not mean that the contents of
documents were also proved. Mere proof of the
documents Exs. 8, 9, 10, 11 and 12 would not
tantamount to proof of all the contents or the
correctness of date of birth stated in the
documents. Since the truth of the fact, namely,
the date of birth of Hukmi Chand and Suraj
Prakash Joshi was in issue, mere proof of the
documents as produced by the aforesaid two
witnesses does not furnish evidence of the truth
of the facts or contents of the documents. The
truth or otherwise of the facts in issue, namely,
the date of birth of the two candidates as
mentioned in the documents could be proved by
admissible evidence i.e. by the evidence of
those persons who could vouchsafe for the truth
of the facts in issue. No evidence of any such
kind was produced by the respondent to prove
the truth of the facts, namely, the date of birth of
Hukmi Chand and of Suraj Prakash Joshi. In the
circumstances the dates of birth as mentioned in
the aforesaid documents 1988 (Supp) SCC 604
have no probative value and the dates of birth as
mentioned therein could not be accepted.”
43. The same proposition of law is reiterated by this Court
in the case of Narbada Devi Gupta Vs. Birendra Kumar
Jaiswal2, where this Court observed as follows:-
“The legal position is not in dispute that mere
production and marking of a document as exhibit
by the court cannot be held to be a due proof of
12its contents. Its execution has to be proved by
admissible evidence, that is, by the “evidence of
those persons who can vouchsafe for the truth of
the facts in issue.”
44. In our opinion, the aforesaid burden of proof has not
been discharged by the prosecution. The father says
nothing about the transfer certificate in his evidence. The
Headmaster has not been examined at all. Therefore, the
entry in the transfer certificate can not be relied upon to
definitely fix the age of the girl.
48. We may further notice that even with reference to
Section 35 of the Indian Evidence Act, a public document
has to be tested by applying the same standard in civil as
well as criminal proceedings. In this context, it would be
appropriate to notice the observations made by this Court in
the case of Ravinder Singh Gorkhi Vs. State of U.P.4 held
as follows:-
“The age of a person as recorded in the school
register or otherwise may be used for various
purposes, namely, for obtaining admission; for
obtaining an appointment; for contesting
election; registration of marriage; obtaining a
separate unit under the ceiling laws; and even
for the purpose of litigating before a civil forum
e.g. necessity of being represented in a court of
law by a guardian or where a suit is filed on the
ground that the plaintiff being a minor he was not
appropriately represented therein or any
transaction made on his behalf was void as he
was a minor. A court of law for the purpose of
determining the age of a (2006) 5 SCC 584 party
to the lis, having regard to the provisions of
Section 35 of the Evidence Act will have to apply
the same standard. No different standard can be
applied in case of an accused as in a case of
abduction or rape, or similar offence where the
victim or the prosecutrix although might have
consented with the accused, if on the basis of
the entries made in the register maintained by
the school, a judgment of conviction is recorded,
the accused would be deprived of his
constitutional right under Article 21 of the
Constitution, as in that case the accused may
unjustly be convicted.”
14. In case of Rishipal Singh Solanki Vs. State of Uttar
13
Pradesh & Others, 2022 (8) SCC 602, while considering
various judgments, the Hon’ble Supreme Court has observed
in para 33 as under :
“33. What emerges on a cumulative consideration of the
aforesaid catena of judgments is as follows:
33.2.2. If an application is filed before the Court claiming
juvenility, the provision of sub-section (2) of section 94 of
the JJ Act, 2015 would have to be applied or read along
with sub-section (2) of section 9 so as to seek evidence for
the purpose of recording a finding stating the age of the
person as nearly as may be.
XXXX XXXX XXX
33.3. That when a claim for juvenility is raised, the burden
is on the person raising the claim to satisfy the Court to
discharge the initial burden. However, the documents
mentioned in Rule 12(3)(a)(i), (ii), and (iii) of the JJ Rules
2007 made under the JJ Act, 2000 or sub-section (2) of
section 94 of JJ Act, 2015, shall be sufficient for prima facie
satisfaction of the Court. On the basis of the aforesaid
documents a presumption of juvenility may be raised.
33.4. The said presumption is however not conclusive
proof of the age of juvenility and the same may be rebutted
by contra evidence let in by the opposite side.
33.5. That the procedure of an inquiry by a Court is not the
same thing as declaring the age of the person as a juvenile
sought before the JJ Board when the case is pending for
trial before the concerned criminal court. In case of an
inquiry, the Court records a prima facie conclusion but when
there is a determination of age as per sub-section (2) of
section 94 of 2015 Act, a declaration is made on the basis
of evidence. Also the age recorded by the JJ Board shall be
deemed to be the true age of the person brought before it.
Thus, the standard of proof in an inquiry is different from
that required in a proceeding where the determination and
declaration of the age of a person has to be made on the
basis of evidence scrutinised and accepted only if worthy of
such acceptance.
33.6. That it is neither feasible nor desirable to lay down an
abstract formula to determine the age of a person. It has to
be on the basis of the material on record and on
appreciation of evidence adduced by the parties in each
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case.
33.7 This Court has observed that a hypertechnical
approach should not be adopted when evidence is adduced
on behalf of the accused in support of the plea that he was
a juvenile.
33.8. If two views are possible on the same evidence, the
court should lean in favour of holding the accused to be a
juvenile in borderline cases. This is in order to ensure that
the benefit of the JJ Act, 2015 is made applicable to the
juvenile in conflict with law. At the same time, the Court
should ensure that the JJ Act, 2015 is not misused by
persons to escape punishment after having committed
serious offences.
33.9. That when the determination of age is on the basis of
evidence such as school records, it is necessary that the
same would have to be considered as per Section 35 of the
Indian Evidence Act, inasmuch as any public or official
document maintained in the discharge of official duty would
have greater credibility than private documents.
33.10. Any document which is in consonance with public
documents, such as matriculation certificate, could be
accepted by the Court or the JJ Board provided such public
document is credible and authentic as per the provisions of
the Indian Evidence Act viz., section 35 and other
provisions.
33.11. Ossification Test cannot be the sole criterion for age
determination and a mechanical view regarding the age of a
person cannot be adopted solely on the basis of medical
opinion by radiological examination. Such evidence is not
conclusive evidence but only a very useful guiding factor to
be considered in the absence of documents mentioned in
Section 94(2) of the JJ Act, 2015.”
15. Recently, in case of P. Yuvaprakash Vs. State represented by
Inspector of Police, 2023 (SCC Online) SC 846, Hon’ble
Supreme Court has held in para 14 to 17 as under :
“14. Section 94 (2)(iii) of the JJ Act clearly indicates that the
date of birth certificate from the school or matriculation or
equivalent certificate by the concerned examination board
has to be firstly preferred in the absence of which the birth
certificate issued by the Corporation or Municipal Authority
or Panchayat and it is only thereafter in the absence of
15these such documents the age is to be determined through
“an ossification test” or “any other latest medical age
determination test” conducted on the orders of the
concerned authority, i.e. Committee or Board or Court. In
the present case, concededly, only a transfer certificate and
not the date of birth certificate or matriculation or equivalent
certificate was considered. Ex. C1, i.e., the school transfer
certificate showed the date of birth of the victim as
11.07.1997. Significantly, the transfer certificate was
produced not by the prosecution but instead by the court
summoned witness, i.e., CW-1. The burden is always upon
the prosecution to establish what it alleges; therefore, the
prosecution could not have been fallen back upon a
document which it had never relied upon. Furthermore, DW-
3, the concerned Revenue Official (Deputy Tahsildar) had
stated on oath that the records for the year 1997 in respect
to the births and deaths were missing. Since it did not
answer to the description of any class of documents
mentioned in Section 94(2)(i) as it was a mere transfer
certificate, Ex C-1 could not have been relied upon to hold
that M was below 18 years at the time of commission of the
offence.
15. In a recent decision, in Rishipal Singh Solanki vs. State
of Uttar Pradesh & Ors. this court outlined the procedure to
be followed in cases where age determination is required.
The court was dealing with Rule 12 of the erstwhile Juvenile
Justice Rules (which is in pari materia) with Section 94 of
the JJ Act, and held as follows:
“20. Rule 12 of the JJ Rules, 2007 deals with the
procedure to be followed in determination of age. The
juvenility of a person in conflict with law had to be
decided prima facie on the basis of physical
appearance, or documents, if available. But an
inquiry into the determination of age by the Court or
the JJ Board was by seeking evidence by obtaining:
(i) the matriculation or equivalent certificates, if
available and in the absence whereof; (ii) the date of
birth certificate from the school (other than a play
school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat. Only in the
absence of either (i), (ii) and (iii) above, the medical
opinion could be sought from a duly constituted
Medical Board to declare the age of the juvenile or
child. It was also provided that while determination
was being made, benefit could be given to the child
or juvenile by considering the age on lower side
16within the margin of one year.”
16. Speaking about provisions of the Juvenile Justice Act,
especially the various options in Section 94 (2) of the JJ
Act, this court held in Sanjeev Kumar Gupta vs. The State
of Uttar Pradesh & Ors that:
“Clause (i) of Section 94 (2) places the date of birth
certificate from the school and the matriculation or
equivalent certificate from the 2021 (12) SCR 502
[2019] 9 SCR 735 concerned examination board in
the same category (namely (i) above). In the absence
thereof category (ii) provides for obtaining the birth
certificate of the corporation, municipal authority or
panchayat. It is only in the absence of (i) and (ii) that
age determination by means of medical analysis is
provided. Section 94(2)(a)(i) indicates a significant
change over the provisions which were contained in
Rule 12(3)(a) of the Rules of 2007 made under the
Act of 2000. Under Rule 12(3)(a)(i) the matriculation
or equivalent certificate was given precedence and it
was only in the event of the certificate not being
available that the date of birth certificate from the
school first attended, could be obtained. In Section
94(2)(i) both the date of birth certificate from the
school as well as the matriculation or equivalent
certificate are placed in the same category.
17. In Abuzar Hossain @ Gulam Hossain Vs. State of West
Bengal, this court, through a three-judge bench, held that
the burden of proving that someone is a juvenile (or below
the prescribed age) is upon the person claiming it. Further,
in that decision, the court indicated the hierarchy of
documents that would be accepted in order of preference.”
16. Reverting to the facts of the case, on due consideration of the
prosecution evidence and in the light of the aforesaid judgment of
the Hon’ble Supreme Court, we find that no any clinching and
legally admissible evidence has been brought by the prosecution
to prove the fact that the prosecutrix in minor and less than 18
years of age on the date of incident. Despite that the trial Court in
17
the impugned judgment has held the prosecutrix minor.
Accordingly we set aside the findings given by the trial Court that
on the date of incident the prosecutrix was minor as the same has
not been proved by the prosecution by leading cogent and
clinching evidence.
17. So far as the forcefully sexual intercourse by the appellant with the
prosecutrix is concerned we have carefully peruse the statements
of the prosecutrix (PW-3). The prosecutrix PW-3 has stated in her
deposition that the appellant is resident of her village and therefore
she knew him. The appellant has taken her to Raipur on the
pretext of marriage and he kept her for about 3 months in a room.
While staying at Raipur the appellant has made physical relation
with her forcefully and when her father came to know, he alongwith
the police came there and taken her alongwith them. In cross
examination she denied the suggestion made by the learned
counsel for the appellant that she expressed her intimacy with the
appellant through mobile phone and wanted to marry with him and
it is the appellant who tried to explain. He voluntarily said that the
appellant has taken her alongwith him to village-Temri and from
Temri the appellant taken her to his house. He admits that in the
night when the appellant had taken her alongwith him, she has not
raised any alarm, She admits that the motorcycle was driven by
the appellant and she was not tied with the motorcycle and another
18
person who is sitting behind her is caught hold her. She admits
that the fact that another person is also sitting behind her in the
motorcycle and caught hold her is disclosed before the police,
while recording her police statements and if the same is not in her
police statement she could not know the reason. She admits that
between Bilaspur to Mungeli the police stations are situated. The
appellant has taken her to Bilaspur but she has not shouted for her
help at police station Sakri and Bilaspur. The appellant has taken
her from Bilaspur to Raipur in which about 2 hours of time has
taken. She admits that there are so many vehicles are running at
Raipur road and further admits that in between Bilaspur to Raipur
while travelling with the appellant she has not raised any alarm to
save her from the appellant. She has stated that she could not
know the nearby vicinity as to whether any persons are residing or
not. She admits that the appellant Narendra was used to go for
work while staying at Raipur and during the period when appellant
went for his work she has not raised any alarm. When the police
has taken her alongwith them, her statement was recorded before
the Magistrate which was read over to her and after found it
correctly recorded she has signed the statement.
18. At this stage, it would be appropriate to deal with 164 CrPC
statement of the prosecutrix Ex. P/4 of the prosecutrix. In her 164
CrPC statement, the prosecutrix has stated that on 22.09.2020 at
19
about 10 – 11 at night she eloped with the appellant and went to
Bilaspur, where she performed marriage with the appellant in the
temple and stayed at Raipur for about 3 months. During these 3
months both of them have made physical relation. She on her own
will eloped with the appellant. She knew him for about 2 and half
years and she wants to reside with him. The appellant has never
used any force with her and whatever happened in between them
is happened with her consent. The recording of 164 CrPC
statement of the prosecutrix has been admitted by her in her
deposition that her statement was recorded before the Magistrate
and after getting it correctly recorded she signed the same.
19. PW-1, the mother of the prosecutrix has stated in her deposition
that she has not seen the appellant coming to village- Guna and
with whom the prosecutrix eloped. She has admitted that she and
the appellant are belongs from a different caste and if both of
them would belongs from the same caste, they would have
performed marriage in between them.
20. PW-2, is the brother of the prosecutrix who stated in his deposition
that if any person would shouted from one room, it will be heard in
other room. The sound of motorcycle will also be heard from his
room but he has not heard any noise either of motorcycle or any
hue and cry of his sister. His sister has also not informed him as to
who has taken her.
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21. PW-4, the father of the prosecutrix has stated that when the
prosecutrix was recovered from the possession of the appellant
she disclosed that the appellant has taken her alongwith him and
made forcefully physical relation with her. He has stated that
before the police he disclosed that the appellant has taken his
daughter and if in his police statement the name of the appellant is
not mentioned, he could not tell the reason. He denied that the
prosecutrix was in love affair with the appellant. He admits that at
the time of making the police statement he disclosed before the
police that the appellant has given a mobile phone to his daughter
and the appellant has snatched the mobile after knowing that the
prosecutrix has regularly talked to him with the mobile. He further
admits that he asked the father of the appellant to explain him
because he has given a mobile phone to his daughter. He further
admits that while staying with the appellant, the prosecutrix has not
asked for her rescue in all those 3 months. He has further stated
that at the time recording the statement of the prosecutrix before
the Magistrate, there was no pressure upon her.
22. While examining the prosecutrix the doctor has not found any
internal or external injuries over the body of the prosecutrix and
opined that she is habitual for sexual intercourse and there is no
sign of any protest.
23. Close scrutiny of the evidence lead by the prosecution makes it
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clear that the prosecutrix was a consenting party in making
physical relation with the appellant. She has volunteraly gone to
Raipur and stayed there on her own will for about 3 months without
informing any one in her family. The conduct of the prosecutrix
would show that she was entangled with the appellant and
engaged in making physical relation consensually. She has not
made any complaint to any person of nearby place or even while
going to Raipur. Neither she was taken by force nor abducted by
the appellant. This is a peculiar case where the evidence on record
has clearly made out a case for consensual sex.
24. The version of the prosecutrix commands great respect and
acceptability, but if there are some circumstances which caused
some doubt in the mind of the Court on the veracity of the
prosecutrix evidence, then it will not be safe to rely on the said
version of the prosecutrix. There is contradiction and omissions in
the statement of the prosecutrix and her parents. The law is well
settled that in case of rape, conviction can be maintained even on
the basis of sole testimony of the prosecutrix. However, there is
an important caveat which is that the testimony of the prosecutrix
must inspire confidence. Even though, the testimony of the
prosecutrix is not required to be corroborated, if her statement is
not believable, then the accused cannot be convicted. The
Prosecution has to bring home from the charges levelled against
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the appellant beyond reasonable doubt which the prosecution has
failed to do in the instant case.
25. Considering the entire facts and circumstances of the case,
particularly the evidence with regard to the age and conduct of the
prosecutrix we are of the opinion that the prosecutrix was more
than 18 years of age at the time of incident. Further she was a
consenting party with the appellant in making physical relation with
him, therefore in the above facts and circumstances of the case
the offences under Section 363, 366, 376(2)(n) of IPC and Section
6 of POCSO Act would not be made out against the appellant. For
the foregoing reasons the appeal is allowed. The judgement of
conviction and order of sentence dated 06.07.2022 is set aside.
The appellant stands acquitted from all the charges. The appellant
is reported to be in jail since 05.01.2021. he be released forthwith,
if he is not required in any other case.
26. Keeping in view the provisions of Section 437-A CrPC, the
appellant is directed to forthwith furnish a personal bond in terms
of Form No.45 prescribed in the Code of Criminal Procedure of
sum of Rs.25,000/- with two reliable sureties in the like amount
before the Court concerned which shall be effective for a period of
six months along with an undertaking that in the event of filing of
Special Leave Petition against the instant judgment or for grant of
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leave, the aforesaid appellant on receipt of notice thereof shall
appear before the Hon’ble Supreme Court.
27. The lower court record along with a copy of this judgment be sent
back immediately to the trial court concerned for compliance and
necessary action.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
R. Mandavi